Corpus Linguistics Comes to the Fourth Circuit (and that’s not a good thing!)

An amicus brief was filed yesterday in the Fourth Circuit Emolument Clause case against President Trump.  The brief was filed on behalf of Clark Cunningham, who is a law professor at Georgia State, and Jesse Egbert, who is a linguistics professor at Northern Arizona University.  The brief states that Professors Cunningham and Egbert have undertaken a “scientific investigation” to conclude that the word emolument did not have “a distinct, narrow meaning limited to ‘profit arising from an office or employ.’”  Some people on the platform-that-must-not-be-named are circulating this brief and its conclusion, presumably because it supports the challenge to President Trump’s business practices under the Emoluments Clause.*

So what is this “scientific investigation” that the professors undertook?  Did it involve a microscope?  Or double-blind clinical testing?  Nope.  It involved the use of corpus linguistics --- a new approach to statutory interpretation that I’ve criticized before, both here on this blog, and also in this short essay.

I will not rehash my arguments about why I’m deeply distrustful of corpus linguistics as a tool for statutory interpretation—especially the interpretation of criminal laws.  But I do want to say a few words about characterizing corpus linguistics as “scientific investigation” and why I am concerned that a law professor would allow his corpus linguistics analysis to be characterized that way.  (Note:  The amicus brief was written by an attorney, but Professors Cunningham and Egbert were the clients.  So I am assuming that they had the ability to object to the use of the phrase “scientific investigation.”)

For one thing, using the phrase “scientific investigation” connotes that the professors conducted an experiment, that the results of that experiment were objectively observable (rather than mere subjective impressions), and that the findings can be replicated.  This is reminiscent of claims by others who advocate for the use of corpus linguistics in statutory interpretation because those “findings are replicable and falsifiable.”

But corpus linguistics does not allow you to type a word or a phrase into a computer which spits out an answer to the question of meaning.  At best, corpus linguistics allows other people to replicate your search of a corpus linguistics database,** but it does not allow them to replicate your findings.  That is because the findings of a corpus linguistics analysis require inference and interpretation.  I’ve made this argument before (using a case called Rasabout as my example).  But the subjective judgment required is on stark display in this brief.

Among other inferences, Professors Cunningham and Egbert conclude that, because the word “emolument” was often modified by the word “official,” that means the word “emolument” when it appeared without modification was generally understood to mean something broader than “profit arising from office.”  If everyone would have understood the term “emolument” to be limited to profits from holding office, so their argument goes, then “official emolument” would be an oddly redundant phrase.  It is for similar reasons, Professors Cunningham and Egbert explain, that we don’t often see the word “fork” modified by the word “metal”—we generally assume that if someone is referring to a fork, then he or she is referring to a metal fork.

This analysis by Professors Cunningham and Egbert may seem perfectly logical.  And you may even be convinced by it.  But the fact that something seems logical does not mean it is “scientific.”  To the contrary, many things that appear logically true end up being empirically false.  Once you have to rely on inferences to derive "findings" from your results, you have left the world of objective truth and moved into the realm of theory. 

There is a second reason why I am especially troubled by the use of the term “scientific investigation” to refer to a corpus linguistics analysis:  It allows Professors Cunningham and Egbert to dismiss opposing views as a failure of “scientific method.”  You see Professors Cunningham and Egbert are not the first academics to undertake a corpus linguistics analysis of the word emolument.  There is a 2017 article by Phillips and White in the South Texas Law Review, which uses corpus linguistics to arrive at the exact opposite conclusion.***  The amicus brief cites to the Phillips and White article, but rather than engaging with the article on the merits, it dismisses the article because it relies on an assumption that (according to the amicus brief) “has no scientific basis” and that is “disproved by the linguistic research reported in this brief.”  The amicus brief goes on to state: “Although Phillips & White subtitle their article ‘A Corpus Linguistic Analysis,’ none of their conclusions about the 18^th century meaning of emolument are based on the scientific methods used for the research reported in this brief.”

I find these characteristics of the Philips and White article to be at best misleading, and arguably false.  First, Cunningham and Egbert have “disproven” nothing.  They arrive at an opposite conclusion because they use different assumptions and make a series of inferences.  That’s called “disagreeing” with someone.  But, of course, to say that you “disagree” with someone has far less rhetorical force than to say you have proven them wrong.

Second, Cunningham and Egbert suggest that Phillips and White didn’t use the “scientific method” of corpus linguistics. That suggestion is false.  There can be no doubt that Philips and White use corpus linguistic analysis.  They don’t simply refer to the method in their subtitle; they provide a methodology section in the article, and they explain how they coded the results of their corpus search to arrive at their conclusions.  So I do not see how the statement that the Phillips and White conclusions are not “based on the scientific methods” used in the amicus brief can be true.  Perhaps Professors Cunningham and Egbert might say that their corpus linguistics methodology was superior.  If so, the brief should make that argument, rather than suggesting that their analysis was scientific and the Philips’ and White’s analysis is not.

Which brings me to my major objection to this brief:  It is claiming a mantle to objective truth, when in reality it is recounting a subjective analysis about which reasonable people can – and do – disagree.  To be clear, Professors Cunningham and Egbert are not the only people using corpus linguistics who suggest that the methodology promises to eliminate judicial discretion and make statutory interpretation an “objective” undertaking.  But this brief is a particularly crude example of that argument.  And given that the brief was filed by academic experts in order to aid judges in this case, I find the crude and misleading analysis to be especially troubling.  If law professors (and other professors) are going to file amicus briefs based on their academic expertise, they should be careful not to mischaracterize or mislead.

Let me close by saying that, although I am a corpus linguistics skeptic, there are thoughtful people on their other side of that issue.  People who I respect (but disagree with) think that corpus linguistics can be a helpful and valuable tool for judges in the interpretation of statutes and Constitutions.  I hope that those thoughtful scholars will affirmatively disclaim the use of the word “science” to describe the endeavor and criticize any briefs that present misleading accounts of what a corpus linguistics analysis can prove or disprove.

 

* To be clear, the brief takes no position on “the ultimate resolution” of the case.  But the arguments in the brief support those challenging the President.

** Interestingly, the search conducted by Professors Cunningham and Egbert for this brief is not necessarily replicable.  Footnote 21 of the brief tells us:

The researchers’ search can be approximately replicated by entering “emolument*” in the initial search box that appears after logging into COFEA. The use of the asterisk produces every word containing the string of letters that precede the asterisk. The researchers corrected the raw results of their COFEA search by looking for and adding texts that contained variant spellings or typographical errors that were missed by the initial search and also deleted identical texts, for example texts that appeared in two different source materials.

*** In an interesting twist, one of the two authors of this law review article, James C. Phillips, is a former co-author of Professor Egbert.  And Egbert touts his article with Phillips as one of his qualifications in FN 10 of the amicus brief.